The Constitution May Defeat Obamacare

In the aftermath of the passage of President Barack Obama’s health care reform, Americans are facing a transformational moment in our nation’s constitutional history.

Sixteen states are filing lawsuits challenging the constitutionality of the federal health care bill. So far, 15 states have joined forces in a single suit against the federal government: Alabama, Colorado, Florida, Idaho, Louisiana, Michigan, Missouri, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. Virginia is filing its own suit, based on the newly signed Virginia Health Care Freedom Act.

Popular Support for Lawsuits

According to a Rasmussen poll released March 23, 49 percent of voters approve of their state suing the federal government over the individual mandate, and only 37 percent oppose the lawsuits.

Republican Governor Bob McDonnell acknowledged the weighty issues involved in this divisive subject in his signing ceremony on March 24.

“We all agree that we must expand access to quality health care and reduce costs for all Virginians. However, that should not be accomplished through an unprecedented federal mandate on individuals that we believe violates the U.S. Constitution,” McDonnell said.

Suits Attack Individual Mandate

The lawsuits brought by the states primarily concern the “individual mandate,” a major aspect of the new law, requiring every U.S. citizen to buy health insurance from private insurers or otherwise be penalized. More broadly, these cases concern the scope of federal versus state powers.

The United States Supreme Court will ultimately decide these matters in rulings that will affect the fundamental structure of our government for generations to come.

The starting principle for these lawsuits is that the Constitution grants “few and defined” powers to the federal government, as founder James Madison put it. Health care is not one of these “few and defined” powers, so Congress can enact federal health care measures only if it is authorized to do so by some other constitutional provision. The only two possibilities are the Commerce Clause and the Taxing and Spending Clause.

Commerce Clause Authority Claimed

Supporters of federal health care argue the Commerce Clause gives federal government the authority to regulate interstate commerce and thus authorizes the bill’s enactment because it is part of interstate commercial activity. But this argument is flimsy.

There is no interstate market for health insurance at the moment, because federal law prohibits one. Indeed, Americans can buy health insurance only within a particular state, and purchase across state lines is strictly limited. Further, as the Congressional Budget Office noted in 1994, requiring Americans to buy a privately-sold product merely because they live in the United States is simply unprecedented.

So the constitutionality of the federal health insurance bill will likely hinge on a particularly tricky issue: determination of when federal regulation of interstate commerce can reach entirely intrastate activities.

Commerce Justification Not Unlimited

The Supreme Court has most recently held the federal government may regulate “those [intrastate] activities that substantially affect interstate commerce” only if they are “economic” or “commercial” ones involving fungible “commodities.” But health insurance is not a commodity and is not fungible, meaning commodities that are readily interchangeable—like grains of wheat.

Furthermore, the Supreme Court has recently confirmed the Commerce Clause has limits. It ruled there is no federal power over “commerce so indirect and remote that … [its regulation] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."

Determination of General Welfare

The Taxing and Spending Clause of the Constitution gives Congress the power to tax and spend for the “general Welfare of the United States.” In 1936, the Supreme Court held that these powers added to the enumerated powers. But that ruling came in the throes of President Roosevelt’s power struggle with the Supreme Court, and it has been extensively criticized by conservative scholars ever since. They point out “general Welfare” is so broad, it eviscerates other constitutional provisions limiting federal government and does indeed establish a “completely centralized government.”

In truth, if federal power is unlimited, the Tenth Amendment is meaningless. It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This would be a major leap for the court.

Unconstitutional Law Can’t Trump States

There is, of course, the Supremacy Clause in the U.S. Constitution, which provides the “Constitution, and the laws of the United States … shall be the supreme law of the land.” But under this clause, an unconstitutional law (violating the Commerce Clause, for example) cannot trump state law.

The intent of the founders was that the federal government perform only those functions that cannot be performed locally. History is on the side of the states but it will be a difficult and long court battle involving on both sides the best and brightest legal minds in the country.

Never before in our nation’s history have so many states squarely taken on the federal government on the precise scope of federal authority versus the powers of the states. One thing’s for sure: President Obama can brag he’s created new jobs, at least for lawyers.

Maureen Martin (mmartin@heartland.org), an attorney, is senior fellow for legal affairs at The Heartland Institute.